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“Non-traditional contracts in the field of intellectual property” — article by Tatyana Tereshchenko, co-authored with Alexander Sergeev for “Patents and Licenses”

Tatiana Tereshchenko, head of the analytical department of Prime Advice, and Alexander Sergeev wrote an article on contractual constructions that are not directly provided for by the fourth part of the Civil Code of the Russian Federation, but follow from the meaning of its norms for "Patents and Licenses".

Keywords: intellectual property law, non-traditional contract, personal data, cultural values, letter of consent, the principle of seniority.

Intellectual property law is an integral part of civil law

Intellectual property law in the objective sense is a separate set of legal norms, forming a separate sub-branch of civil law [1]. Accordingly, the general principles of civil law should apply in this sub-sector. Although this provision is indisputable from a theoretical point of view, its practical implementation faces a number of difficulties. As an example, we can refer to the possibility of renouncing an exclusive right: if, in relation to most subjective civil rights, this possibility is not in doubt [2], then for some reason, in relation to an exclusive right, it is actually denied without any reasonable explanation.

Since 2014, the copyright holder has only had the opportunity to make a public statement about granting any person the right to use a work of science, literature or art belonging to them, or an object of related rights, free of charge, under the conditions specified by the copyright holder and within the period specified by them (paragraph 5 of Article 1233 of the Civil Code of the Russian Federation). By logical interpretation of the law, it is not difficult to conclude that the issuance of so-called free licenses is allowed only in respect of objects of copyright and related rights, and a complete rejection of the exclusive right is generally unacceptable. In our opinion, this provision is at odds with the basic principles of civil law and does not meet the needs of modern practice.


1 Although at present this sub-branch is significantly "diluted" by the norms that belong, according to the generally accepted opinion, to administrative law, it still generally remains a part of civil law.

2 The exception is those subjective civil rights that simultaneously act as obligations, for example, the right of a parent to participate in the upbringing of a child, which at the same time is his duty.

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